Comparative Nationality Law - Selected Questions (2012)

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The law of nationality : comparative

and international perspective

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Nationality Law - 2012-13 2

A few practical arrangements

• _{Class : Monday 11 am – 1 pm - Tocqueville} • _{For each class : outline + ppt.}

• _{Materials : statutory materials} • _{For some topics : cases}

• _{Exam : January – oral exam – reasoning} tested on the basis of cases

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Outline

• _{Introduction (and general principles)} • ₁st_{theme : nationality within families}

(acquisition ius sanguinis)

• ₂nd_{theme : nationality and migration}

(acquisition ius soli)

• ₃rd_{theme : Loss of nationality}

• ₄th_{theme : Dual nationalities}

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1. Introduction : 3 questions

• ₁st_{) What is 'nationality' and the law of}

nationality?

• ₂nd_{) How to study nationality law?}

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1. Introduction : 1st_question

A. What is 'nationality'? I. First approach

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• _{Starting point : nationality is a link between an} individual and a State (not applicable to legal persons)

• Nationality : not the only link between individual and a State → residence and domicile

• Differences :

– _{Stability of the links}

– _{Nature and importance of the}

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• _{Nationality gives a legal form to bond between} individual and a State

• _{Other dimensions to the bond which may exist} between individual and state - different forms of connection between an individual and a State

– _{Psychological / based on sentiments}

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• _{ICJ has captured the multi-layered nature of}

nationality when it defined nationality as follows: • _{« Nationality is a legal bond having at its basis a}

social fact of attachment, a genuine connection of existence, sentiments and interests together with the existence of reciprocal rights and duties » (ICJ – Nottenbohm – 1955)

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• What is the difference between 'nationality' and 'citizenship'? Distinction is not always made – depends on the language used

• One possible distinction:

– Nationality : legal concept, expresses the link between a State and members of its community (as in 'membership in a state')

– Citizenship : various meanings, from synonym to nationality, to a more comprehensive concept, covering all residents ('members of a polity') or at least all legal residents. Special relevance in EU :

'citizenship' of the Union (see Article 20 Treaty EU : « Citizenship of

the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.»).

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• _{Whatever version of the concept of nationality is} chosen, important to note that nationality does not say much about the position of nationals

• Nationality as a 'framework legal relationship' : it does not establish or grant rights / duties to

individuals concerned. It merely represents a necessary condition for the entitlement to these rights / duties (as laid out in other legal

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• Law of nationality : concerned with (acquisition and loss of) nationality as such, not with the

consequences of nationality (even if these should

be taken into consideration)

• Before studying the formal rules on acquisition and loss of nationality, important to have a minimal

understanding of the consequences / effects of nationality (even though these consequences / effects are not as such the subject of nationality law but are determined by other legal disciplines)

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A. What is 'nationality'?

II. Consequences of nationality

• When is nationality relevant?

– Mr Smith, 34 y. old teacher born in Canada from English parents who migrated to Canada : should he pay taxes in UK because he also has British nationality?

– Ms Hirsi, Somalian national living in Belgium since 17 y., loses her job : may she apply for unemployment benefits or is she barred because of her nationality?

– May Mr Jenk, Dutch national stand for local elections in Brussels where he lives since 15 y.?

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• What are the consequences / effects of nationality ?

– (Unlimited) Freedom to enter and settle in a country (+ no extradition – exception : European Arrest Warrant)

– Right to participate in public / political life of the country (e.g. right to vote; access to certain public offices)

– Other 'minor' entitlements (diplomatic protection; benefits granted by country X to nationals of country Y, e.g. under a bilateral treaty)

– Civil/family status (in some jurisdictions where civil/family status connected with nationality – e.g. France)

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• Duties imposed by possession of a nationality? – (In some countries) : military service

– Loyalty to one's country? (only indirectly, e.g. art. 113 Criminal Code : specific punishment of Belgian citizen who was enrolled in an army fighting against Belgium)

– Other 'minor' duties (such as duty to be a

member of jury in a criminal trial or duty to help with organisation of elections)

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• Nationality is in principle not relevant for:

– Possibility to obtain assistance from the State and public authorities - e.g. • Police, etc.

• Assistance from welfare agencies – but certain social security benefits may be reserved to nationals and assimilated – e.g. special entitlements for handicapped persons ('Income Replacing Benefit' and 'Integration Benefit') reserved under Belgian law to Belgian/EU nationals, nationals of certain countries or family members of such nationals – US citizen living in Belgium with US family not entitled

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• Nationality is in principle not relevant for (continued):

– Local voting rights (at least in the EU)

– Payment of taxes... (in some countries, tax jurisdiction is nationality sensitive, see USA → Tax Code's Nasty Bite in 2012)

– Civil/family status (at least in jurisdictions where civil/family status connected with residence)

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• _{On balance:}

– Limited direct impact of nationality (mainly in the public sphere)

– In addition, consequences of nationality have in practice greatly decreased since WWII

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• Decreased importance of nationality:

– Nationality used to be the key for entitlement to a great number of rights - e.g. • Access to public offices and exercise of political rights

• or even the right to be a member of an association – see 1921 Belgian statute on 'ASBL'

– Nowadays nationality has lost a substantial part of its importance – recent examples :

• Possibility to become a notary (ECJ 24 May 2011)

• 'Décret Communauté française élargissant les conditions de nationalité pour l'accès aux emplois de la Fonction publique de la Communauté française 19 avril 2012'

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• 1st_{factor explaining decreasing importance of nationality : rise}

of membership in 'supra-national' entities

• In some regions of the world, creation of new forms of 'membership' – most developed example is EU

– Positive rights linked to EU citizenship (e.g. right to vote for EU elections, right to travel and settle, etc.)

– Negative right : right not to be discriminated

• This does not mean, however, that nationality is subject to European rules (see later)

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• ₂nd_{factor explaining decreasing importance of}

nationality : rise of human rights

• _{Human and fundamental rights coupled not so} much to nationality, but rather to 'personhood', fact of being a human being (under the

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• _{Two trends taken together : demise of nationality} and rise of a 'postnational membership' model? • _{Model : describes the fact that fundamental}

(social, civic and sometimes even political) rights are not tied to a person's formal citizen status, but instead to his/her residence status or to his/her

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• In practice, nationality remains important:

– For some issues, nationality remains crucial (access to

territory - Full exercise of political rights, in particular right to be elected)

– Psychological element (sense of belonging to a community – not being a 'foreigner' or a 'guest', even a 'long term guest', 'We/They')

– In many parts of the world : nationality could still make a major difference (e.g. South Sudan)

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1. Introduction : 2nd_question

B. How to study nationality law ?

• _{Nationality law : legal discipline including rules} on acquisition and loss of nationality – e.g. how does one become a French citizen, how may one lose German nationality?

• Ambitious perspective : since nationality law does not in itself determine what are the

consequences of nationality, study nationality law, but also look at other legal disciplines to determine the content of the status of citizen

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1. Introduction : 2nd_question

B. How to study nationality law ?

• _{Perspective for this course less ambitious : focus} on the rules determining whether the status of

national is attributed, determined and lost (citizen or not)

• Broad perspective comes from:

– _{Focus not on one country, but on general} principles and trends in EU Member States – _{Attention for the (historical, political,}

sociological) reasons underlying changes in nationality law

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1. Introduction : 3rd_question

C. Sources of Nationality Law

• Where do I find nationality law? • Nationality law is first national law

• E.g. in Belgium : Code of Belgian nationality (Law of 28 June 1984, as modified many times) (exclusive federal jurisdiction)

• In some countries : nationality law part of a

general Code (e.g. France : Civil code); in other countries : separate Act (e.g. German Act on

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• _{Two important questions in relation to the} national rules concerning nationality:

– Influence of time factor?

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• 1st_{question : which version in time of the law of}

nationality ?

• Importance of the element of time : a question of nationality must be solved using the rules in

force at the time the question (facts) arose

• Important because nationality is in general made to stay (one does not change easily of

nationality...), but at the same time, nationality laws are subject to (frequent) changes

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I. Influence of time on Nationality Law

• E.g.: Mr. John Sibelman born in Belgium in 1932 out of Belgian parents

• In 1937 emigrated with his parents to the U.S. • _{The parents obtained US citizenship in 1947} • _{John also acquired US citizenship as a}

consequence of naturalization of his parents • _{In 2012, Mr. Sibelman, who has retired and}

wishes to visit relatives in Belgium and spend time there, enquires to know if he has kept his Belgian nationality

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• 1st_{question : was Mr Sibelman a Belgian citizen}

when he was born

• Question must be addressed based on the legislation applicable in 1932

• 2nd_{question : did Mr Sibelman lose his Belgian}

nationality when becoming a US citizen in 1947 • Question must be addressed based on the

legislation applicable in 1947 and in fact, at any point later in time Mr Sibelman at which may have lost his original Belgian nationality

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• See Article 18-4° of the Coordinated Laws of 1932 (applicable legislation on nationality until adoption of the CBN in 1984) : the underage child of a Belgian citizen automatically lost

his/her Belgian nationality if (and when) his/her Belgian parents lost the Belgian nationality by application of Art. 18 (e.g. upon voluntary

acquisition of another nationality), provided the child acquired the foreign nationality together with his parents

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• Conclusion :

– _{M. Sibelman lost his Belgian nationality in} 1947 (he was not yet 18 y. old at that time) – _{If M. Sibelman had not lost his Belgian}

nationality at that time, examine whether he may have lost it afterwards (e.g. because of prolonged residence outside Belgium) on the basis of law at the relevant point in time

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• Difficulty : identify the relevant material fact, which determines the appropriate version of nationality law:

– Birth

– _Marriage

– Acquisition of nationality by parents

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C. Sources of Nationality Law II. Which Nationality Law?

• ₂nd_{question : which law applies?}

• _{Each State is the sole master of its nationality:} – It is up to each State to determine who are its

nationals (and who may lose its nationality) – Foreign law has no role to play in

determining who are nationals of State X and law of State X has nothing to say on who are nationals of other States

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• Nuances – interactions between nationality laws • _{1°) Local law may make acquisition of local}

nationality dependent on loss of foreign

nationality (e.g. will a French national have to waive his French nationality when becoming Dutch by naturalization?)

• _{Loss always occurs in application of law of} (former) nationality concerned (and not in application of law of newly acquired

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• Allocation of questions:

– Law of new nationality : does acquisition of new nationality require loss of existing nationality?

– Law of former nationality : if law of new nationality requires loss of existing

nationality, how can applicant lose his/her existing nationality?

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• Nuances – interactions between nationality laws • _{2°) Local law may provide that nationality will}

be lost if acquisition of foreign nationality - e.g. will an Italian national lose his Italian

nationality if becoming French by naturalization (answer : no : art. 11 Italian nationality law)

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• Allocation of questions:

– Law of new nationality : only relevant to determine whether applicant obtains new nationality

– Law of former nationality : relevant to determine whether acquisition of new nationality brings about loss of existing nationality

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III. International Law of Nationality

• Customary international law ? Very limited impact on nationality rules. Limited to few vague principles,

such as:

– States should strive to avoid creating cases of statelessness

– States should avoid arbitrary deprivation of nationality, etc.

• Regional customary rules – within Council of Europe, probably greater role - e.g. equality of treatment of father and mother in transmission ius

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• _{Conventional international law ?}

– Great number of international conventions, dealing with various issues

– However, these conventions do not touch the 'core' of nationality law (acquisition and loss) - e.g. Hague Protocol of 12 April 1930 relating to military obligations in certain

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• One exception : 1997 European Convention on Nationality (Council of Europe)

• Rules on :

– General principles (e.g. art. 5 Convention : no discrimination on the basis of sex, religion, race, etc. in matters of nationality)

– Acquisition (at birth, for adults, etc.) – Loss of nationality

– Procedures

– Multiple nationalities – State succesion

• Convention negotiated in the aftermath of liberation of Central and Eastern Europe. Unfortunately, not yet signed or ratified by Belgium... But 20 ratifications

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• Besides international conventional law, 'national' nationality law is also influenced by:

– _{European law (see later)}

– European Convention on Human Rights ? • No direct impact of ECHR, no

fundamental right to obtain or keep a nationality under ECHR

• However, application of other rights could limit action of States in matters of nationality

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• _{e.g. : ECHR, 11 Oct. 2011, Genovese v. Malta :} – Child born in Scotland out of British

mother and Maltese father, not married – At first father refuses to recognize his son – Mother obtains from Scottish court that

father is recognized as father of the child – Maltese authorities refuse Maltese

nationality to the son because born to an unmarried couple

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• ECHR :

– Art. 8 ECHR does not guarantee a right to a acquire a particular nationality

– But arbitrary denial of citizenship might raise an issue under art. 8 ECHR because of the impact of such a denial on the private life of the individual – Since only reason for denial of nationality was

that child was born out of wedlock, Court finds that there is a violation of art. 8 combined with art. 14

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The law of nationality : comparative

and international perspective

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Outline

• Acquisition of nationality

– General introduction : overview of the

methods of acquisition

– 1st_{theme : nationality within families}

(acquisition ius sanguinis)

– 2nd_{theme : nationality and migration}

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I. Overview of the methods of acquisition

• Traditional distinction between various methods of acquisition of nationality:

– Blood link with a national (ius sanguinis) – 'being' a national, state as a 'family' united by a common origin

– Birth on territory (ius soli) – state as a 'community' united by notion of

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• Distinction between ius soli and ius sanguinis is deceptive and not useful for analysis:

• 1) Some means of acquiring nationality do not fit neatly in this summa divisio – e.g. :

– Acquisition through continued (long term?)

residence on territory (ius educationis / socialis?) – Acquisition through marriage with a national :

acquisition is not automatic but merely possible following marriage (family link) and provided

foreign spouse resides for a certain period in country - requires elements of both methods

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• 2) Characterization of acquisition ius

sanguinis / ius soli must be nuanced

• _{e.g. is acquisition ius soli really more 'modern'}

and open than acquisition ius sanguinis? • _{Acquisition ius soli has long been a feudal}

mechanism of acquisition (becoming a national because birth on the estate of the Lord, allegiance through ownership of the land)...

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• 3) Finally, there has been a process of convergence between the traditional ius sanguinis countries and the traditional ius soli countries

– Traditional ius sanguinis countries (such as

Belgium, Germany, Greece) have introduced or extended ius soli provisions for second and 3rd

generation immigrants

– Classic ius soli countries (UK, Ireland) have limited these provisions

• Distinction has therefore lost some of its relevance as a 'meta-divider' between countries

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• _{Conclusion : distinction between ius soli and}

ius sanguinis not much useful as tool for

analysis

• _{Comparative analysis reveals that many}

different means of acquisition of nationality today (EUDO-classification : distinction

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• Many doors to obtaining a nationality – an attempt at classification:

– Acquisition through family relationship – covers various aspects:

• Blood link with a national – acquisition through birth - acquisition 'ius sanguinis' sensu stricto

• Other family law relationships which do not rest upon blood link – e.g. adoption or marriage

– Residence on the territory of a State or other territorial link - distinction:

• Automatic acquisition – e.g. State may grant its nationality to all children born on the territory ('ius soli' sensu stricto)

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• Today, nationality law of (most?) countries is based on a mix of various grounds of acquisition

• System based on only one method of acquisition not tenable – e.g.

– If nationality of State X is acquired exclusively through long term residence – what about children of nationals, stateless during their first years of existence? – If nationality of State X is acquired exclusively through blood link with a

national – potential exclusion of all foreigners residing in the country, even those born out of foreigners born out of foreigners born in the country

• How much ius soli, how much ius sanguinis, etc. is the product of history and various elements – (im-)migration, politics, demography, etc.

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• Is the law of nationality the product of a clear reflection on what the nation is/should be?

• _{Difference between theoretical models (e.g.} nation based on 'civic citizenship' if

acquisition is predominantly premised on long term residence or birth on the territory / based on 'ethnic citizenship' if acquisition is

premised mainly on ius sanguinis) and practice (most nationality laws are more nuanced, with various elements and policy concerns – ever changing compromise...)

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• _{Analysis suggested for this course :}

– Focus on the main grounds of acquisition

– Analysis in the light of recent trends and general principles

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• Keep in mind that in order to obtain complete view of a system and identify the general balance of a system:

– Grounds of acquisition should be considered together (e.g. if

system is generous towards second or third generation foreigners, less need to open up naturalization for 1st_{generation foreigners)}

– Grounds of acquisition should be studied together with causes of loss of nationality

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Outline

• Acquisition of nationality

– General introduction : overview of the methods of acquisition

– 1st_{theme : nationality within families}

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II. Acquisition of nationality in family relations 1. Introduction

• Family relationships (and most specifically link with parents) : (probably) most common way for person to acquire a nationality

• Outline of the analysis :

– Acquisition through 'blood links' – parents and children → examine whether the law of nationality has kept up with the evolution of family law

• Equality men/women

• Children born in marriage/ outside marriage – Acquisition through marriage

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II. Acquisition of nationality in family relations 1. Introduction

• Acquisition ius sanguinis is (in most cases)

automatic (by operation of the law – ex lege) → difficulty to demonstrate that acquisition took place • Two methods to show that acquisition took place :

– Demonstrate that legal requirements were

fulfilled (implies using the law at the time the family event took place)

– Demonstrate the 'possession d'état' (if allowed in matters of nationality – see e.g. Art. 30-2 French Civil Code).

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II. Acquisition of nationality in family relations

2. Acquisition ius sanguinis and the evolution of family relationships

• Starting point : birth in country of origin of family (e.g. : child born in France out of French parents)

• _{Two questions:}

– Will a child acquire mother's and father's nationality?

– Equality of children born from married parents and outside wedlock?

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Nationality Law - 2012-13 17 2. Acquisition ius sanguinis and the evolution of family relationships

A. Are parents equal before the law of nationality?

• 1st_{question : does child acquire nationality of}

his father, mother or both ?

• _{For a long time : traditional rule of acquisition} of nationality only through the father (ius

sanginis a patre)

• _{e.g. : Belgium : Art. 1-1° Coordinated Laws of 1932 :} “Sont belges . . . 1° L'enfant légitime né, même en

pays étranger, d'un père ayant la qualité de Belge au jour de la naissance”

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• Today : rule has been abandoned – equality men/woman in transmission of nationality - principle that child can obtain nationality of both his father and mother

• _{Evolution started after WWII and reached} apex in 1970's and 1980's in Western

Europe (in Central and Eastern Europe, equal treatment took place earlier, on account of Soviet inspired legislation)

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• Evolution towards equality men-women : slow and progressive:

– France : 1945 – Ireland : 1956 – Denmark : 1978 – Netherlands : 1985 – Luxemburg : 1987 – Cyprus : 1999

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• Sometimes evolution through legislator – e.g. Philippines:

– 1935 Constitution: only the child of a

Filipino father acquired Filipino citizenship at birth

– 1973 Constitution : Filipino citizenship

granted to children whose fathers or mothers are citizens of the country (today, see Art. IV, Section 1(2) 1987 Constitution)

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• Sometimes evolution through case law – e.g. Germany

• E.g. German Constitutional Court, ruling of 21 May 1974 : the Court found that § 4 – 1 of the German Act on Nationality (as applied then), according to which German nationality was only transmitted ius sanguinis a patre, was in violation of the

principle of equality between men and women

• Court annulled the provision and required the legislator to

provide for equal treatment for acquisition of the nationality of the father and of the mother.

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• In 1979 principle of equality of men and women is recognized generally : Art. 9 § 2 of the UN Int'l Convention on the

Elimination of All Forms of Discrimination of Women (NY, 18.12.1979) : “States

Parties shall grant women equal rights with men with respect to the nationality of their children.”

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• Today principle is well established in Western

Europe - see art. 6 § 1 (a) Eur. Conv. Nationality : “Each State Party shall provide in its internal law for its nationality to be acquired ex lege by the following persons : a children one of whose parents possesses, at the time of the birth of these children, the

nationality of that State Party... »

• Belgium : Art. 8 CBN; France : Art. 18 Civil Code; Italy : Art. 1-1(a); Germany : section 4 Nationality act, etc.

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• _{Consequence of this evolution : increasing} number of cases of multiple nationalities - child obtaining nationalities of both his

parents (see infra : marriage has no automatic influence on nationality of spouses)

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• Acquisition ius sanguinis a patre remains however the rule in some countries

• 1°) Most extreme case : no transmission a matre

• e.g. Kuwaiti Nationality Law 5 Dec. 1959:

– Art. 2 :”Any person born in, or outside, Kuwait

whose father is a Kuwaiti national shall be a Kuwaiti national himself”

– Art. 3 : “Kuwaiti nationality is acquired by any

person born in Kuwait whose parents are unknown. A foundling is deemed to have been born in Kuwait unless the contrary is proved”

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• _{Consequences:}

– Child born from Kuwaiti father : always obtains Kuwaiti nationality, even if born abroad

– Child born from Kuwaiti mother : does not obtain nationality from mother (eg. mother married to a foreigner)

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• See reservation made by Kuwait in respect of art. 9 § 2 of the 1979 Int'l Convention on the Elimination of All Forms of Discrimination of Women : “The Government of Kuwait reserves its right not to

implement the provision contained in article 9, par. 2, of the Convention, inasmuch as it runs counter to the Kuwaiti Nationality Act, which stipulates that a child’s nationality shall be determined by that of his father”.

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• _{2°) In other countries : acquisition ius}

sanguinis a matre restricted to specific

circumstances

• E.g. Art. 6 Tunisian Nationality Code

(1963) : is Tunisian

– The child born out of a Tunisian father

– The child born out of a Tunisian mother and an unknown father or father without nationality – The child born in Tunisia out of a Tunisian

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• 3°) Other restrictive provision

• E.g. Switzerland : special provision for marriages

between 1952 and 1992 (automatic acquisition of Swiss nationality by foreign woman)

• Art. 57a Swiss Act : child of a Swiss mother who acquired her nationality by a previous marriage only acquires Swiss nationality if child does not acquire another nationality or becomes stateless before attaining the age of majority

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• In some countries, restriction concerns acquisition ius

sanguinis a patre

• E.g. Sect. 1 Sweden Act : acquisition of Swedish nationality:

– Automatic if mother is Swedish (whether mother married or not, whether child born in Sweden or not)

– If father is Swedish, acquisition only works at birth if: • Child born in Sweden

• Or if father is married to the mother

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B. Children in and out of marriage

• ₂nd_{question : does it make a difference}

whether parents are married or not?

• _{E.g. parents are married, bound by a civil}

partnership (PAC's) or not married • Any difference for the child?

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• Question is (in principle) only relevant for acquisition of father's nationality

• Transmission of mother's nationality is in

principle not linked to her status (married or not) – parentage link between child and mother

automatically established (nature) and sufficient to transmit nationality

• Exception : in some countries, mother's

nationality only transmitted if child does not have a father or stateless, or not at all (e.g. Kuwait)

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• _{For father : nationality can only be acquired} if there is a legal bond between father and child → link with family law

• 2 steps in reasoning :

– Is father legally the father? (answer under family law)

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• _{Various situations must be distinguished} • ₁st_{situation : parents are married}

• ₁st_{question : is husband legally the father?}

• In most legal systems, mother's husband will automatically be deemed to be the child's father (presumption of paternity –

pater est quem nuptiae demonstrant -

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• ₂nd_{question : if link is established, will child}

obtain his father's nationality?

• _{Legal systems in Western Europe generally} provide that child born within wedlock

automatically acquires the citizenship of the husband of the mother (e.g. Art. 7(1)(a)

Austrian Act; Art. 1(1) Danish Act; Art. 9(2) Finnish Act; Art. 1(3) Swedish Act, etc.)

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• 2nd situation : parents are bound by a civil 'partnership' • 1st question : is the partner legally the father?

• Whether or not the child is legally the child of the mother's partner, depends on the consequences of the civil partnership • In most legal systems, partnership will not have any effect on

paternity, or at least no equivalent to paternity presumption – this is the case for the French PAC's, the German 'partnerschaft' or the Belgian 'cohabitation légale', etc. - recognition of the child is necessary; without such recognition, child will not obtain his father's nationality

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• ₂nd_{question : if link is established (through}

recognition of the child), will child obtain his father's nationality?

• _{No difference with marriage – a parent is a}

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• 3rd_{situation : parents are not married}

• 1st_{question : No automatic link between father and}

child; father will have to recognize the child • Questions:

– Which law applies to recognition?

– How to recognize (recognition, court judgment, legitimation)?

– Problem : sometimes no recognition outside marriage...

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• ₂nd_{question : is there transmission of father's}

nationality if link father-child is established?

• Picture is mixed : in some countries,

automatic transmission, in other countries qualified transmission, in yet other countries no transmission

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• _{First category : countries where once}

parental link established between father and child born out of wedlock, automatic

acquisition (ex lege) – e.g. art. 4(1) German Act, art. 2 Italian Act; art. 1(1) Lux Act; art. 14 Portuguese Act, etc.

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• 2nd_{category : transmission of the father's nationality}

automatic, but only until certain age

• E.g. transmission only if establishment of parental link

takes place before child turns 18 y. (e.g. art. 2 Italian law; art. 20-1 French law); or 23 y. (Germany)

• Related question : what if child is already older (15, 16 y. etc.) : if link with father is established, child obtains nationality of father but risk that losing his/her original nationality? Consent of the child?

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• 3rd_{category : transmission of the father's nationality}

conditional upon other requirement

• E.g. no transmission if birth abroad – e.g. DK :

where the child's parents are not married and only the father is a Danish national, the child will only acquire Danish nationality if born in DK (art. 1(1)(a) Danish Act) – argument? Child born out of wedlock less

likely to develop close ties with the state of

citizenship of his father if he lives abroad (in the same sense : Sweden)

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• 4th _{category : transmission only if specific}

modes of establishment of fatherhood • Process may vary – e.g. :

– Establishment of fatherhood by

recognition (e.g. Art. 4(1) German Act –

before child turns 23 y.)

– Establishment of fatherhood by

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• Diversity is in conformity with art. 6(1)(a) ECN : “With respect to children whose parenthood is established by recognition, court order or similar

procedures, each State Party may provide that the child acquires its nationality following the procedure determined by its internal law...”

• See also principle 11 of Recommendation CM/Rec(2009)13 of the Committee of Ministers (9.12.2009) on the nationality of children : States should “provide that children whose parentage is established by recognition, by court order or similar procedures acquire the nationality of the parent concerned, subject only to a procedure determined by their internal law”

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• 5th category : transmission only possible if child is

legitimized, i.e. through subsequent marriage

between mother and father

• E.g. Austria : child of an unmarried Austrian

mother acquires Austrian nationality (ex lege – art. 6(3)); child of an unmarried Austrian father : no acquisition through recognition by father, but only by marriage of parents – art. 7 (a)

• Same system in Scandinavia (Art. 2 Danish Act; Art. 11 Finnish Act; Art. 4 Swedish Act)

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B. Children in and out of marriage - conclusion

• _{If one compares the situation of the}

children, the treatment afforded to children may vary depending on whether the parents are married or not

• _{However, the distinction is not proper to the} law of nationality - it follows closely the

mechanisms of family law and replicates them. It should therefore not be considered to be discriminatory

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• Recently, substantial number of modifications to allow fathers to pass on their citizenship iure sanguinis to children born out of wedlock – e.g. Sweden (2001); Norway (2006), the

Netherlands (2009) etc.

• e.g. Netherlands : new provisions in Art. 4 RWN in 2009 – Dutch nationality granted i) to children recognized by Dutch citizens before reaching the age of 7 (art. 4.2), ii) to children becoming the child of a Dutch citizen through legitimation (art. 4.3) and iii) to children recognized by a Dutch citizen provided DNA-evidence of biological link is brought (art. 4.4)

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• In some countries, situation of children born out of marriage still difficult

• See e.g. Malta : section 5(2) of the Maltese Citizenship Act provides that “A person born outside Malta … shall be deemed to have become or shall become a citizen of Malta at the date of his or her birth: (b) ...if at the date of such person’s birth, his or her father or mother is a citizen of Malta ...”

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• _{However, section 17 (1)(a) of the Act}

provides that “any reference to the father of a person shall, in relation to a person born out of wedlock and not legitimated, be

construed as a reference to the mother of that person; ...”

• Case Genovese v Malta (ECHR,

11.10.2011) : M. Genovese, born in

Scotland out of British mother and Maltese father, unmarried

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• Father refuses to acknowledge his son, no contact – but Scottish court decides he is the father (after DNA-evidence)

• Application in Malta for the son to be granted Maltese nationality – refused on the basis that Maltese citizenship could not be granted to an illegitimate child in cases where the illegitimate offspring was born to a non-Maltese mother and a Maltese father (section 17(1)(a) of the Maltese Citizenship Act)

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• Proceedings before the ECHR – claim for violation of artt. 8 and 14 ECHR • 1st stage : is ECHR applicable? Convention does not guarantee a right to

acquire a particular nationality or citizenship • Court :

– An arbitrary denial of citizenship might in certain circumstances raise an issue under Art. 8 because of the impact of such a denial on the private life of the individual

– Art. 14 applies to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide – in this case, Malta has decided to grant the right to citizenship by descent and established a procedure to that end – this situation falls now under art. 8 (see art. 53)

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• 2nd_{stage : merits}

• Is distinction based on status of parents (married or not) justified or not? M.

Genovese was in an analogous situation to other children with a father of Maltese

nationality and a mother of foreign nationality

• Only distinguishing factor, which rendered him ineligible to acquire citizenship, was the fact that he had been born out of wedlock.

(96)

• Court : no sufficient reason to justify different treatment

• Idea that children born in wedlock have a link with their parents resulting from their parents’ marriage, a link which did not exist in cases of children born out of wedlock is not sufficient • Fact that, while a mother is always certain, a

father is not – not sufficient (because under Maltese law, even if father is known, no possibility to obtain nationality)

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C. Assessment

• _{Looking at (Western) Europe, acquisition}

ius sanguinis is in line with principle of

equality:

– 1) Principle of equality of sexes : one

parent is enough (father or mother); 'mixed' families (where not all members have the same and only the same nationality) are treated equally with 'purely local' families

(98)

C. Assessment

• _{2) Equality less perfect between children} born out of wedlock and within marriages • _{But recent evolution going in this direction}

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C. Assessment

• _{3) Equality of father and mother plants the} seeds of dual nationalities - reinforced by other factors (such as lack of impact of marriage on nationality – see later)

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C. Assessment

• _{4) Does acquisition through parents lead to} 'Ethnic' nationality ?

• _{No : acquisition ius sanguinis is blind for} the origin of the nationality of the parent whose nationality is acquired by child

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C. Assessment

• _{Parents who only recently obtained}

nationality or did not obtain nationality ius

sanguinis : may transmit this nationality ius sanguinis

• _{e.g. : Moroccan parents, born in Morocco}

became Belgian citizens by naturalization in 2010. in 2012, the mother gives birth to a child in Belgium → Mother gives her

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C. Assessment

• _{Equality is the rule : no distinction is made} on the basis of how and when the parents became national - no requirement that

parents themselves born in 'home' country, etc.

• _{E.g. Art. 4 Latvian Act Nationality : “The}

rights and obligations of Latvia citizens are equal regardless of the manner in which

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II. Acquisition of nationality in family relations 3. Acquisition through marriage

A. Introduction

• _{Impact of marriage on nationality?} • _{Sensitive question : 'marriages of}

convenience' seen (rightly or wrongly) as a prevalent problem (linked with migration) • Link between nationality and marriage as

changed dramatically over time – distinction between 3 stages in evolution

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A. Husbands and wives : the age of domination

• ₁st_{stage in evolution : the age of domination}

• _{For a long time, women acquired the}

nationality of their husbands and lost their nationality of origin. This was common practice all over Europe

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• National laws provided two parallel measures:

– Upon marriage with a citizen, a foreign woman automatically acquired the nationality of her husband - e.g. Article 4 of the Belgian Coordinated Acts of 1932 : “L'étrangère qui épouse un belge ou dont le mari devient

belge par option suit la condition de son mari” - justification : wish to

guarantee unity of nationality within the family

– Upon acquisition of the nationality of her husband by a woman married with a foreigner, the woman lost her original nationality - e.g. Article 19 of the French Civil Code (in force until 1927) : “Une femme française qui

(106)

• _{Consequence : women acquired the}

nationality of their husbands and lost their nationality of origin

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B. Husbands and wives : the age of equality

• ₂nd_{stage in evolution : starting after WWII,}

the situation started to change. Idea of

equality between men and women gained ground

• _{Progressive evolution, over a couple of} decades and in various stages

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• 1st_{(timid) measure : ensure that if a women lost her}

nationality when marrying a foreign husband, at least loss is

conditional upon her acquiring the nationality of her

husband. Concern : prevent the woman from becoming stateless

• See Art. 8 of the 1930 Hague Convention : “If the national

law of the wife causes her to lose her nationality on marriage with a foreigner, this consequence shall be

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• 2nd step in evolution : impact of marriage on nationality was nuanced by providing that foreign wife still acquired the nationality of her husband, but she could resist acquisition

• e.g. Belgium : foreign woman could resist acquisition (by filing a notice) - e.g. Art. 4 Act of 1932 : “Toutefois elle [the foreign woman marrying a Belgian citizen] peut renoncer à la

nationalité belge par une déclaration … durant les six mois à partir du jour du mariage ou du jour où le mari est devenu belge [at least provided she demonstrates that she possesses a foreign nationality or would recover one]

• Other example : foreign wife's consent needed for acquisition of husband's nationality (e.g. France : Act of 10.08.1927 : foreign woman marrying a French national only acquired French nationality if she consented thereto - during marriage ceremony - and she could also keep her original nationality (again, by filing a notice to that effect)

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• Principle was further implemented through many bilateral conventions

• See e.g. Convention between France and Belgium 1947 on the nationality of the married woman:

– A woman marrying a national of the other country, shall acquire the nationality of her husband

– She could, however make a declaration to keep her original nationality (and hence, not acquire her

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• 3rd_{step in evolution : principle of automatic} acquisition by wife of husband's nationality is abandoned

• Turning point : 1957 UN Convention on the Nationality of the Married Women

• Preamble : wish of Contracting States to promote “universal respect for, and observance of, human

rights and fundamental freedoms for all without distinction as to sex”

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• 1957 UN Convention based on the assumption that the marriage should not have any automatic effect on the nationality of the wife

• Art. 1 of the Convention : “Each Contracting State agrees that

neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the

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• Idea of unity of nationality within family remained a concern for States

• In order to reach this goal, the States agreed to provide a

possibility for foreign women to acquire the nationality of

their spouses

• See Art. 3 of the Convention : “Each Contracting State

agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures.” (provision

only refers to acquisition by wife of husband's nationality... not the opposite)

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• Today, principle that marriage has no automatic effect on nationality of the spouses is well established

• See e.g. art. 4 Eur. Convention on Nationality : “The rules on nationality of each State Party shall be based on the following principles : … d) neither marriage nor the dissolution of a

marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse. »

• See e.g.

– Belgium : art. 16 CNB (1984)

– France : art. 21-1 French Civil Code (principle that marriage has no automatic effect on nationality of woman accepted with Act of 9.01.1973)

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• In most States, however, marriage opens the door for facilitated acquisition of nationality

• Marriage combined with a certain residence together : ground for acquisition • E.g. art. 21-2 French Civil Code : facilitated acquisition procedure by

declaration for foreign spouse

• E.g. : existence of marriage may also lead to a shorter naturalization period - under Dutch law, marriage with a Dutch opens the door to naturalization (see art. 8 § 2 Rijkswet : naturalization is possible after 3 years of marriage, no application of general requirement of 5 y. residence; but requirement that integration be demonstrated...)

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C. Husbands and wives : the age of suspicion

• _{3rd stage : starting in the 1990's, increased} suspicion in EU vis-à-vis facilitated

acquisition procedures for foreign spouses • _{Reason : marriage has become one of the}

main doors of migration

• _{Gradually, restrictions were placed on the} acquisition of nationality of EU spouse, with strong emphasis on residence together

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• _{Suspicion led to additional requirements or} additional severity in requirements for

acquisition of nationality through marriage • ₁st_{) acquisition only provided marriage is}

stable

• ₂nd_{) spouses should live in the State, the}

nationality of which is at stake

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• 1st_{) acquisition is only possible after a certain} period of marriage

• In order to become relevant for the acquisition of the nationality, the marriage should last for a

certain period of time

• Duration required can vary:

– e.g. Belgium : 3 years of 'living together' (art. 16 CNB / art. 12bis §1-3° CNB 2013)

– e.g. France : acquisition possible after 4 years of marriage (art. 21(2) French Civil Code)